Tag Archives: Religious Tradition

Josef Pieper’s Allegory of the Black Bread

Josef Pieper was a German philosopher of the post-war period who worked inPieper the Thomistic philosophical tradition. Perhaps his best known and most widely read essay (Pieper often wrote relatively short and accessible essays rather than longer-form books) is Leisure, The Basis of Culture (1948), in which Pieper argued that the disposition toward leisure allows us more fully to take part in and enjoy the world. Leisure in Pieper’s account did not mean any cessation of work or “down-time” in which one could be idle for the instrumental purpose of doing more effective work later. Instead, leisure was a condition of the mind that allowed a person a certain silence in which he could perceive and then celebrate the splendors of creation.

I am now reading Pieper’s essay, Tradition: Concept and Claim (originally Tradition Concept and Claimpublished in 1970, but developed from a lecture given in 1957). In it, Pieper discusses the idea of tradition in a distinctively sacred key. For Pieper, by far the most important variety of tradition is “sacred” tradition, because the reasons to value tradition have not so much to do with a tradition’s being handed down as with the source of the tradition. Those that handed down the tradition as an initial matter were closest to the divine source of the tradition, and it is for that reason that the tradition has value.

Pieper’s is a bracing account of tradition because it differs so completely from the ways in which tradition generally is conceived and discussed today, in law and elsewhere, including by supporters of the influence and importance of tradition in these spheres. He allows that there are “secular” traditions but these are not really at all the traditions in which he is interested; secular traditions are instrumentally valuable (they enable life to “run along with less friction”) but not intrinsically valuable.

An interesting problem arises for Pieper when there is an admixture of sacredBlack Bread and secular traditions–or, more precisely, when people employ a variety of secular traditions in order better to preserve, uphold, and transmit the sacred tradition. In responding to the problem, Pieper offers an allegory–the allegory of the black bread:

In my grandparents’ day, it was a settled custom in peasant households that the father had to slice the bread for suppertime. If he was beginning to cut a new loaf, he made the sign of the cross over it with the knife. It was done, as I saw many times as a child, almost casually, even furtively, but it was never omitted. Things have changed since then. We no longer bake those enormous loaves of black bread, which really needed a grown man to master them. Now we have machines to slice the bread, and most of the time the bread comes from the store or factory already sliced. In a word, this beautiful tradition too has passed away. It does not take much imagination to see how many themes are present here for a truly pessimistic cultural critique (“machines replacing humans,” “urbanization,” “the collapse of the family,” and so forth).

Nevertheless, we can ask whether this kind of change is simply deplorable. Is it legitimate to speak in a more or less precise sense of a “loss of tradition” here? The answer to this question is made more complicated by the fact that here the purely technical process was clearly linked with elements of the sacred tradition. It seems to me that we could really talk about a “loss of tradition” and a “break with tradition” if the change affected the family’s order, and most of all what was meant by the holy sign of the cross; that is, such language is appropriate when that which is lost stands in more or less direct connection with the traditum, which alone must be unconditionally preserved. It is common for the essence of what must be preserved to become overgrown by and entangled with the concrete forms of historical life, and a change in the outer may very well threaten the pure preservation of the essence, so that anyone who carelessly discards or makes light of the “outer” traditions commits a dangerous act. A student of ethnology once told me that in a group that was driven out of its homeland, religious commitment might possibly grow looser to the same degree that the group moves away from baking its rolls in a certain way. Of course, the question remains open what is the cause here and what the effect, and whether we are not dealing with an extremely complex total process.

Tradition: Concept and Claim, 40.

Bennett, Traditional African Religions in South African Law

Traditional African ReligionsThis past November, Juta – Academic published Traditional African Religions in South African Law by Tom Bennett (University of Cape Town). The publisher’s description follows.

Traditional African beliefs, together with African cultural traditions, are enjoying a new-found respect in South Africa, due in large part to the advent of the country’s democratic constitution.  In fact, a large majority of the South African population adheres to some form of traditional belief, often in combination with observance of other religions.  Even so, the traditional faiths are poorly understood and, in spite of constitutional guarantees, receive far from equal treatment, a situation quite at odds with the country’s commitment to equality and religious and cultural diversity.

While there are numerous works on the subject of religion in Africa, there are no works on traditional African religions and their legal implications.  The issue is nevertheless of serious political and legal concern in South Africa, since it raises diverse questions involving freedom of religion, the equal treatment of religions, traditional healing, witchcraft, animal sacrifice, circumcision, marriage and burial.

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Law as Tradition: Law’s Presence

Professor Martin Krygier’s description and argument for “Law as Tradition” began with a claim about law’s pastness, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all.  The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness).  For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.”  (248)  This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:

In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:

what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.

Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ‘an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and “their historians”]. When it comes to thinking about the past, one characteristic of ‘thinking like a lawyer’, Hay argues, is what historians call ‘presentism'; ‘the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’.  What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.

When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality].  All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition.

Law as Tradition: Law’s Pastness

This is perhaps not directly connected to religion, but — indirectly — the connection could not be much closer.

One of the happy byproducts of a recent exchange with my friend John Inazu was his reference to an essay by Martin Krygier from nearly thirty years ago, Law as Tradition, 5 Law & Philosophy 237 (1986).  Because the essay is not publicly available, and at the risk of provoking the copyright goddess, I thought to post a few portions of it in this and subsequent posts.  The essay is well worth reading in full.  Krygier identifies and discusses three special features of law as tradition: law’s pastness, law’s authoritative presence, and law’s transmission or continuity from past to present.

Here’s the sense of Professor Krygier’s discussion of law’s pastness.  As in every tradition, law records, preserves, and ‘hands down’ across the generations a composite of opinions and values.  But unlike in other traditions, in law the maintenance and transmission of the past is itself institutionalized.  And that institutionalization gives the past a particular kind of power, though the power is of course far from absolute (in part this is because the tradition itself is variegated and not univocal).

Judging, he writes,

that activity so favoured with jurisprudential attention and writings, is an archetypally traditional and tradition-referring practice. For however innovative judges are, their modes of justifying decisions, and therefore the sorts of arguments which must be addressed to them, in fact or hypothetically, differ systematically from those of other decision-makers such as, say, engineers or entrepreneurs, or workers in less self-consciously authority-filled traditions, such as novelists, artists or scientists, who themselves are in no way free from the traditions of their calling. Judging is a specific and characteristic mode of making and justifying practical decisions: a judicial decision is one which is justified publicly by reference to authorized institutional tradition. In those hard cases that lawyers and legal theorists so enjoy to contemplate, the need publicly to justify one’s decision in terms of interpretations of the legal past which seem plausible to experts, remains important long after simple rule-application has ceased to be possible. Doing this involves neither application of a clear unequivocal rule, as in the perhaps mythical easy cases, nor invention ex nihilo, but inescapably (though not only) inter-pretation of authorized institutional tradition. (245)

Richard Hooker on Law, the Ancient, and the Good

Richard Hooker was a sixteenth-century Anglican churchman whose Of the LawsRIchard Hooker of Ecclesiastical Polity (1594-1597) is both a masterpiece of Anglican theology and a work of extraordinary stylistic elegance and force.  It was written primarily as a defense of the Church of England against the Puritan challenge, but Hooker ranges over many subjects of more general interest related to law, authority, custom, change, and tradition.  Over the last couple of days, on the recommendation of a friend, I’ve been reading fragments of the Laws here and there (you can access the whole thing for free at the link above).  I cannot recommend it more highly.

Here is my favorite passage (so far!) — from Book V, Chapter 7.  It relates closely to some of the things we think about on CLR Forum, from time to time.  Merry Christmas to those of our readers who are celebrating the holiday.

VII. Neither may we in this case lightly esteem what hath been allowed as fit in the judgment of antiquity, and by the long continued practice of the whole Church; from which unnecessarily to swerve, experience hath never as yet found it safe. For wisdom’s sake we reverence them no less that are young, or not much less, than if they were stricken in years. And therefore of such it is rightly said that their ripeness of understanding is “grey hair,” and their virtues “old age.” But because wisdom and youth are seldom joined in one, and the ordinary course of the world is more according to Job’s observation, who giveth men advice to seek “wisdom amongst the ancient, and in the length of days, understanding;” therefore if the comparison do stand between man and man, which shall hearken unto other; sith the aged for the most part are best experienced, least subject to rash and unadvised passions, it hath been ever judged reasonable that their sentence in matter of counsel should be better trusted, and more relied upon than other men’s. The goodness of God having furnished man with two chief instruments both necessary for this life, hands to execute and a mind to devise great things; the one is not profitable longer than the vigour of youth doth strengthen it, nor the other greatly till age and experience have brought it to perfection. In whom therefore time hath not perfected knowledge, such must be contented to follow them in whom it hath. For this cause none is more attentively heard than they whose speeches are as David’s were, “I have been young and now am old,” much I have seen and observed in the world. Sharp and subtile discourses of wit procure many times very great applause, but being laid in the balance with that which the habit of sound experience plainly delivereth, they are overweighed. God may endue men extraordinarily with understanding as it pleaseth him. But let no man presuming thereupon neglect the instructions, or despise the ordinances of his elders, sith He whose gift wisdom is hath said, “Ask thy father and he will shew thee; thine ancients and they shall tell thee.”

[2.]It is therefore the voice both of God and nature, not of learning only, that especially in matters of action and policy, “The sentences and judgments of men experienced, aged and wise, yea though they speak without any proof or demonstration, are no less to be hearkened unto, than as being demonstrations in themselves; because such men’s long observation is as an eye, wherewith they presently and plainly behold those principles which sway over all actions.” Whereby we are taught both the cause wherefore wise men’s judgments should be credited, and the mean how to use their judgments to the increase of our own wisdom. That which sheweth them to be wise, is the gathering of principles out of their own particular experiments. And the framing of our particular experiments according to the rule of their principles shall make us such as they are.

[3.]If therefore even at the first so great account should be made of wise men’s counsels touching things that are publicly done, as time shall add thereunto continuance and approbation of succeeding ages, their credit and authority must needs be greater. They which do nothing but that which men of account did before them, are, although they do amiss, yet the less faulty, because they are not the authors of harm. And doing well, their actions are freed from prejudice of novelty. To the best and wisest , while they live, the world is continually a froward opposite, a curious observer of their defects and imperfections; their virtues it afterwards as much admireth. And for this cause many times that which most deserveth approbation would hardly be able to find favour, if they which propose it were not content to profess themselves therein scholars and followers of the ancient. For the world will not endure to hear that we are wiser than any have been which went before. In which consideration there is cause why we should be slow and unwilling to change, without very urgent necessity, the ancient ordinances, rites, and long approved customs, of our venerable predecessors. The love of things ancient doth argue stayedness, but levity and want of experience maketh apt unto innovations. That which wisdom did first begin, and hath been with good men long continued, challengeth allowance of them that succeed, although it plead for itself nothing. That which is new, if it promise not much, doth fear condemnation before trial; till trial, no man doth acquit or trust it, what good soever it pretend and promise. So that in this kind there are few things known to be good, till such time as they grow to be ancient. The vain pretence of those glorious names, where they could not be with any truth, neither in reason ought to have been so much alleged, hath wrought such a prejudice against them in the minds of the common sort, as if they had utterly no force at all; whereas (especially for these observances which concern our present question) antiquity, custom, and consent in the Church of God, making with that which law doth establish, are themselves most sufficient reasons to uphold the same, unless some notable public inconvenience enforce the contrary. For a small thing in the eye of law is as nothing.

[4.]We are therefore bold to make our second petition this, That in things the fitness whereof is not of itself apparent, nor easy to be made sufficiently manifest unto all, yet the judgment of antiquity concurring with that which is received may induce them to think it not unfit, who are not able to allege any known weighty inconvenience which it hath, or to take any strong exception against it.

Krishna-Hensel (ed.), “Religion, Education and Governance in the Middle East”

This month, Ashgate Publishing will publish Religion, Education and Governance in the Middle East: Between Tradition and Modernity edited by Sai Felicia Krishna-Hensel (Auburn University at Montgomery).  The publisher’s description follows.

The Middle East is a key geopolitical strategic region in the international system but its distinctive cultural and political divisions present a mosaic of states that do not lend themselves to simplistic interpretations. A thoughtful analysis of the Middle East requires an understanding of the synergism between tradition and modernity in the region as it adapts to a globalizing world. Religious education and activism continue to remain a significant factor in the modernization process and the development of modern governance in the states of the Middle East.

This interdisciplinary book explores the historical and contemporary role of religious tradition and education on political elites and governing agencies in several major states as well as generally in the region. The relationship between democracy and authority is examined to provide a better understanding of the complexity underlying the emergence of new power configurations. As the region continues to respond to the forces of change in the international system it remains an important and intriguing area for analysts.